from the because-of-course dept

Back in May, of course, a troubling ruling by the EU Court of Justice said that search engines had to disappear links on searches for certain people's names if that information was somehow no longer relevant. This, of course, kicked off a "right to be forgotten" craze in Europe, where thousands of people sought to have embarrassing stories about them removed from Google's results on their names. In July, we noted that EU regulators were suggesting that this "right to be forgotten" should apply globally, rather than just in Europe, as Google had currently implemented it. Google pushed back on this idea, but apparently without success. Last week, the EU's data protection officials released new "guidelines" [pdf] that argue the right to be forgotten should apply globally.

Specifically, it argues that if a person's privacy rights are violated by having results show up in search engines in Europe, then those same rights are violated if they show up in any non-EU search results as well (all emphasis in the original):

The [data protection working group] considers that in order to give full effect to the data subject’s rights as defined in the Court’s ruling, de-listing decisions must be implemented in such a way that they guarantee the effective and complete protection of data subjects’ rights and that EU law cannot be circumvented. In that sense, limiting de-listing to EU domains on the grounds that users tend to access search engines via their national domains cannot be considered a sufficient means to satisfactorily guarantee the rights of data subjects according to the ruling. In practice, this means that in any case de-listing should also be effective on all relevant .com domains.

Under EU law, everyone has a right to data protection.

The key line here is not actually bolded in the original. It's the "this means that in any case de-listing should also be effective on all relevant .com domains." Basically, if it can be reached from Europe, it has to be blocked. Or, in even shorter form, "EU regulations apply around the globe online." That's a really, really, bad idea. Because now how will the EU respond to other countries pushing their own silly censorship efforts globally? Russia can claim that anything about homosexuality must be blocked globally. China can argue that anything about Tibet or government corruption can be blocked globally. And how will the EU respond?

This is so troubling that even folks who actually support the original ruling are speaking out about how troubling these new guidelines are. Even GigaOm's David Meyer, who regularly has supported the right to be forgotten (which he argues is an unfair description of "the right to be de-linked"), says that this is bad:

I can understand Falque-Pierrotin’s logic, but even I — someone who finds value in the concept of the right to be de-linked — think this is an awful decision.

It’s part of a worrying trend, taking place around the world, for local or regional internet-related rules to apply everywhere. Again, it is understandable why regulators want to do this – the internet is a global medium, and it’s near-impossible to geographically limit effective regulation – but the result is layers of overlapping jurisdictions.

Even if Europeans believe strongly in this right-to-be-forgotten idea, they should be, as Meyers is, troubled by the idea that an EU ruling can impact the global internet. And yes, as Meyers points out, the US is often guilty of pretending that its laws apply to the global internet as well, and that should be equally troubling.

from the slow-down-guys dept

Keeping up with the ongoing Roca Labs saga appears to require full-time effort, as there are a bunch of updates. First up, though, is that Roca Labs has decided to sue blogger Tracy Coenen for the articles she published about Roca Labs. Earlier this month, we wrote about Roca Labs' threats against Tracy Coenen, a fraud investigator, who wrote about Roca Labs on her Fraud Files blog. As in the past, it appears that Roca Labs believes statements that are clearly opinions or hyperbole are somehow defamatory if they reflect negatively on Roca Labs. Before filing the lawsuit, Roca sent a second threat letter with a very brief deadline, complaining that she "publicly mocked" them. Coenen's response was to publish a new blog post explaining why she believes "Roca Labs Must Be Mocked."

In the actual lawsuit, Roca also claims that because Coenen sent us Roca's threat letter and we published it, that she was using Roca's letter to "harass and mock" the company. Who knew that merely publishing the threat Roca Labs sent is harassment of Roca Labs? And, of course, mocking Roca Labs is not against the law, no matter how much the company might wish it were so.

In the meantime, it appears that Coenen actually did -- at least temporarily -- give in to Roca's demands and removed the blog post in question -- but Roca Labs claimed it was not enough because she "did not retract [her] Defamatory Statements or otherwise comment publically [sic] concerning the defamatory Statements' lack of fact and merit." Further, the lawsuit accuses her of trying to "conceal the truth and cover-up [her] bad acts."

So, to keep this straight: Roca Labs sent her threat letters claiming what she wrote was defamatory, and after she removed the post (temporarily), the company is using that as evidence that she's trying to conceal the truth? Really? Good luck with that one. Oh, and also, it appears that Roca's attorney in this case, John DeGirolamo, is still somewhat confused about what defamation per se means. Hopefully, the court will sort it out for him.

In the meantime, some other things have been happening in various other Roca Labs court proceedings. Up in New York, where PissedConsumer (Consumer Opinion Corp.) had originally sued Roca Labs for declaratory judgment of non-infringement, Roca Labs had been trying to get out of the case arguing that the jurisdiction is improper. But, as you may recall, Roca also recently sent a questionable DMCA takedown letter to Google, claiming that content on PissedConsumer was infringing (something we find unlikely to be true... but...). However, as PissedConsumers' lawyers in New York note, in filing that takedown, Roca Labs has effectively made itself subject to PissedConsumer's local court's jurisdiction. This is based on a ruling in another nutty case we covered for a while, the effort by Gina Crosley-Corcoran to use the DMCA to silence a critic. In that case, the court noted that, in serving a DMCA takedown notice, the sender "purposefully and voluntarily directed [its] activities toward the forum so that [it] should have expected, by virtue of the benefit [it] received, to be subject to [this] court's jurisdiction based on these contacts."

When PissedConsumer's lawyers notified Roca Labs' lawyers of this, Roca Labs stood by its argument that the court has no jurisdiction, but Roca Labs' lawyers didn't seem to understand the significance of this. In response, PissedConsumer is now seeking to go after Roca Labs for DMCA 512(f) penalties, for misrepresentations in filing a DMCA takedown.

And, finally, just to complete this trio of stories, we'll also note that, down in the Florida case, PissedConsumer has filed a humdinger of a motion for summary judgment, laying out why Roca Labs has no chance in its case, and why the case should be put to rest quickly. Given everything else going on, we won't go into a more detailed analysis of that motion, other than to suggest you read it, and note that, as we predicted, it relies heavily on Section 230. It's written by Marc Randazza, so it's got that readable style he's become known for.

from the know-thyself dept

A year ago, Techdirt wrote about a new unit set up by the City of London Police to tackle crimes involving intellectual monopolies. Since then, there have been a flood of posts about its increasingly disproportionate actions, including seizing domain names, shutting down websites, inserting ads on websites, and arresting someone for running an anti-censorship proxy. This makes a PCPro interview with the head of that unit, Detective Chief Inspector (DCI) Andy Fyfe, particularly valuable, since it helps shed a little light on the unit's mindset. It's well-worth reading the whole thing, but here's a key section:

I'm very interested in having a debate in the media about how much policing of the internet people want. At the moment, there’s almost no regulation and no policing of the internet and that means members of the public -- such as you and I -- when we're trying to use it for shopping or to do internet shopping, actually don’t have anyone looking out for our interests to make sure that the people we’re dealing with at the other end of the line are legitimate or reasonable or looking after our data properly.

In the end, that might mean that the internet becomes completely ungovernable, and that no one can dare operate on it at all, no one can dare do their shopping or banking on it.

DCI Fyfe seems to be talking about a different Internet from the one most of us use, which is not just subject to regulations, but to multiple regulations because of the way overlapping jurisdictions are involved. Indeed, because of this, the Internet arguably has far more policing than the physical world. Moreover, in terms of "looking out for our interests," the Internet is unique in that its users are able to do that for themselves using online rating systems, reviews left on websites and general comments on social networks. Word about dodgy online operators gets out incredibly quickly, so in this respect, we are probably far safer online than in the physical world where such mechanisms are rarely available.

However, it is true that there is a threat to online shopping and banking, but not the one DCI Fyfe is probably thinking about. Buying and selling goods, or transferring money online, is relatively safe thanks to strong encryption that is now routinely available for such operations. Or rather, it was relatively safe until spy agencies like the NSA and GCHQ decided to undermine the entire basis of these activities for their own purely selfish ends, and disregarding the collateral damage they would cause to general users of the Internet.

Despite the harm caused by such actions, DCI Fyfe thinks a time may come when the government will want to interfere even more:

That time might come, but it's how much interference the public will tolerate, because clearly a lot of people believe there should be no state interference at all on the internet, but that leads to lawlessness and anarchy.

The growing crusade of DCI Fyfe's unit against online sites purely on the say-so of the copyright industry shows that he doesn't really care what "a lot of people" think about state interference. And when it comes to "anarchy and lawlessness," acting without court orders seems to fit that bill rather well.

from the say-what? dept

This was mentioned briefly in our recent post about EasyDNS changing how it deals with online pharmacies, but it's still dealing with bizarre requests from the City of London Police. As we've been detailing, the City of London Police seem to think that (1) their job is to protect the business model of the legacy entertainment industry and (2) that they can do this globally, despite actually just representing one-square mile and (3) that they can do this entirely based on their own say so, rather than any actual court ruling. It started last year when the City of London Police started ordering registrars to transfer domains to the police based entirely on their say so, rather than any sort of due process/trial that found the sites guilty of violating a law. The police wanted the domains to point to sites that the legacy entertainment industry approved of, which makes you wonder why the police are working on behalf of one particular industry and acting as an ad campaign for them.

Speaking of advertising, the City of London Police's more recent tactic is inserting ridiculous and misleading banner ads on websites based on a secret blacklist that has no oversight and no due process or way to appeal. Such lists often include perfectly legitimate sites. But, I'm sure we can trust the City of London Police to get this right, given that the guy in charge of the City of London Police's Intellectual Property Crime Unit (PIPCU), Adrian Leppard, believes that "the Tor" is 90% of the internet and that "Bitnet" is a "huge risk and threat to our society."

We respectfully request that EASYDNS TECHNOLOGIES, INC. give consideration to your ongoing business relationship with the owners/purchasers of the domain to avoid any future accusations of knowingly facilitating the movement of criminal funds.

Should you require any clarification please do not hesitate to make contact.

As Jeftovic notes, the implication here is pretty clear. The City of London Police wants to "build a case" that EasyDNS is somehow responsible for aiding and abetting criminal activity.

Once again, we are being asked to do (something, we're actually not sure what this time) based entirely on an allegation which has never been tested in a court of law and has been afforded absolutely zero "due process". (The domain in question is a search engine that hosts no content).

[....]

We think this time the intent is not to actually get the domain name taken down, but rather to build some sort of "case" (I won't call it legal, perhaps the better word would be "kafka-esque") that we, easyDNS by mere "Receipt of this email" are now knowingly allowing domains under management to be "used to facilitate criminal activity".

Thus, if we don't takedown the domains PIPCU want us to, when they want us to, then we may face accusations in the future (in their own words) "of knowingly facilitating the movement of criminal funds."

Which of course, we don't know at all because there has never even been a court case anywhere to test the PIPCU allegations. I know I never went to law school or anything, but in my mind, until that happens, that is all they are – allegations.

And, of course, it's tough to see how the City of London Police have any jurisdiction at all over EasyDNS, a Canadian company. Jeftovic goes on to wonder if the City of London Police are actually defaming the websites they accuse in these notices. Of course, the problem is that these sites tend to be small and powerless. As we've seen with sites like Dajaz1 and Rojadirecta, even after they were taken down and businesses were destroyed for over a year before the Justice Department in the US simply dropped the cases and handed back the domain names, there was little those sites could do in response. Sure, they could have filed a lawsuit, but lawsuits are expensive, and a lawsuit for a tiny struggling website against the US government? That's just not likely to get anywhere productive.

What's extra troubling is how this tactic of targeting registrars for non-judicial censorship like this is becoming increasingly common -- and it's happening in countries like the US and the UK which claim to support basic principles of due process and are (supposedly) against prior restraint. When it comes to the City of London Police, they seem to be operating without any sort of controls or oversight, just making it up as they go along. Unfortunately, because they're "the police," it doesn't seem likely that anyone will get them to cut out this censorious and harassing activity.

from the worldwide-censorship dept

We've been covering the ridiculous ruling in the EU on the "right to be forgotten," which was interpreted to mean that search engines could be forced to delete links to perfectly truthful stories (and even if those stories are allowed to be kept online). Google has been trying to comply with the over 90,000 requests it has received -- nearly half of which it has approved -- and removed from its European searches. The company has been struggling to figure out how to comply with the ruling, and those struggles continue. Originally, it was going to place a notice on search results pages where links had been removed (like it does with copyright takedowns) alerting people that stories were missing. However, regulators told Google that would defeat the purpose. So now, Google's European search results show a message on nearly every search on a "name" that results might have been removed.

Either way, once Google started removing the requested stories, it did the right thing, alerting the websites that links were being removed. Of course, that just resulted in many of those publications writing about it, and bringing the original news back into the public eye.

In response to all of this, European regulators are apparently quite angry again, summoning representatives from Google, Yahoo and Microsoft (but mainly Google) to argue that the removals should be global, not just for Europe and that the companies should stop informing websites if their stories were removed. One hopes that these three companies would fight strongly against either such proposal. The idea that Europe can dictate how search engines in other parts of the world work is dangerous. We've already noted that a Canadian court seems to think it has similar powers, and that's going to create a huge mess. Any time courts and regulators in one country think they can dictate how websites work in other countries, that is creating a massive jurisdictional mess (where contradictory rulings may run into each other), as well as allowing oppressive states to claim they, too, have the right to dictate how the web works in more open countries.

As for blocking sites from being informed, that would clearly go against basic transparency principles, and lead to yet another huge mess for websites which will (quite reasonably) wonder why their stories have gone totally missing from Google searches (especially if forced to extend it around the globe).

Of course, the real problem here is with the original ruling. The idea that public information that is widely disseminated already can magically be made private because someone thinks it's embarrassing and that it's no longer important is simply a ridiculous assertion in the first place. All of the problems that have come in implementing this are because the initial premise -- trying to disappear public information -- is so messed up.

from the because-we're-the-us-gov't-dammit dept

Last month, we wrote about Microsoft challenging the DOJ's attempt to use the outdated Electronic Communications Privacy Act (ECPA) to go fishing for emails held overseas. As Microsoft rightly noted, a warrant does not apply overseas. A magistrate judge tried to dance around this, saying that a warrant under ECPA is really kinda like a subpoena. But Microsoft points out how insane that is:

This interpretation not only blatantly rewrites the statute, it reads out of the Fourth Amendment the bedrock requirement that the Government must specify the place to be searched with particularity, effectively amending the Constitution for searches of communications held digitally. It would also authorize the Government (including state and local governments) to violate the territorial integrity of sovereign nations and circumvent the commitments made by the United States in mutual legal assistance treaties expressly designed to facilitate cross-border criminal investigations. If this is what Congress intended, it would have made its intent clear in the statute. But the language and the logic of the statute, as well as its legislative history, show that Congress used the word "warrant" in ECPA to mean "warrant," and not some super-powerful "hybrid subpoena." And Congress used the term "warrant" expecting that the Government would be bound by all the inherent limitations of warrants, including the limitation that warrants may not be issued to obtain evidence located in the territory of another sovereign nation.

Overseas records must be disclosed domestically when a valid subpoena, order, or warrant compels their production. The disclosure of records under such circumstances has never been considered tantamount to a physical search under Fourth Amendment principles, and Microsoft is mistaken to argue that the SCA provides for an overseas search here. As there is no overseas search or seizure, Microsoft’s reliance on principles of extra-territoriality and comity falls wide of the mark.

A bunch of tech and telco companies have all jumped into the case on Microsoft's side as well, noting that the DOJ's argument would almost certainly violate data privacy laws in other countries, not to mention piss off governments around the globe. The crux of the argument, as per usual with the DOJ, is that when it wants data, it will twist and twist and twist the laws to enable it to get access to as much data as possible, with as little scrutiny as possible. This is just one of many reasons why we need serious ECPA reform -- such that it actually respects the 4th Amendment. But, in this case, it would be nice to have a judge realize that even under such an outdated law, the DOJ's interpretation is simply out of line.

from the dangerous-ruling dept

In the wake of the awful European "right to be forgotten" ruling, it appears that a Canadian court is looking to get in on the over-aggressive censorship of the internet game. As highlighted by Michael Geist, the court in British Columbia has basically ruled that it can order Google to delete links to an entire website worldwide. The ruling in the Equustek Solutions Inc. v. Jack case is quite troubling on a variety of different levels, all of which should be called out for the problems and consequences (intended or otherwise) they are likely to create. First, in many ways, this ruling goes beyond the European right to be forgotten ruling, which at least limited the ruling to Europe. Not so with this court's ruling, which basically argues that because Google operates worldwide, it is automatically amenable to any regulation around the globe (even though Google isn't even one of the parties in the lawsuit!).

This is, frankly, a concern that we've been discussing for well over a decade -- the question of "jurisdiction" for online activities. As we've noted, it's somewhat crazy to argue that because you do something online, and that's the accessible anywhere, that any laws from any countries apply worldwide. That's a recipe for killing the internet, because it means that the most draconian laws automatically prevail. The stricter the regulations and the greater the censorship always win out under that scenario, since not obeying the most draconian rules automatically subjects you to liability. Such a ruling would have immense (and immensely troubling) implications.

And yet, that's exactly what this BC court decides to claim. It almost entirely shrugs off the consequences, instead blaming them on Google for having the temerity to operate globally.

I will address here Google’s submission that this analysis would give every state in the world jurisdiction over Google’s search services. That may be so. But if so, it flows as a natural consequence of Google doing business on a global scale, not from a flaw in the territorial competence analysis.

The court seems confused about two things. One is the decision to open up global offices and to be subject to the jurisdiction of various countries where you have operations, and be subject to those laws for the users within that country. That already raises some questions. But, the court conflates the idea that a company may be subject to a local jurisdiction for the parts of the company operating in that jurisdiction, with the fact that an online service is available around the globe. The second, is the idea that because a ruling applies to the Canadian jurisdiction, it's okay to enforce it around the globe from Canada. Google had already removed the links in question on the Google.ca search engine, but the court is saying it needs to go much, much further.

Think, for just a second, about the consequences of such a decision. As Michael Geist notes, it's not hard to see where this gets very troubling very fast:

The implications are enormous since if a Canadian court has the power to limit access to information for the globe, presumably other courts would as well. While the court does not grapple with this possibility, what happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if Iran orders it remove Israeli sites from the database? The possibilities are endless since local rules of freedom of expression often differ from country to country.

Or, just go back to the European right to be forgotten ruling. Under this rationale, Europeans might seek to have such content deleted globally. Or how about China? We just reported on how successfully China has more or less deleted all references to Tiananman Square online within China. Now imagine that it had the power to do that globally? For years we've discussed libel tourism in which individuals and companies pick the "best" jurisdiction to sue someone for libel, using the claims that because it's on the internet, the statements are available in that country (even if neither the speaker, nor the subject of the speech) are located in that country. Imagine what the internet looks like when such rulings can be determined to apply globally.

It's not just that it creates a heckler's veto for the internet. It's much, much worse. It means that the most draconian, most repressive, most anti-free speech rules automatically apply to the entire internet, because one could just seek out the most extreme jurisdiction to bring cases, and then seek to apply them globally just because the content appears "online." This is a disastrous ruling for the internet, for free speech and for freedom in general. Hopefully, the case is appealed and overturned.

from the good-to-see dept

As we've been covering the Prenda debacle for years, there was still the one big "victory" it had, in which a DC district court judge ruled that randomly lumping together over a thousand unrelated "Does" was perfectly legitimate, something most other courts had found to be inappropriate. Of course, people quickly figured out that the judge who found in favor of this bizarre joinder ruling, had only recently been appointed to the bench, having previously been an RIAA lobbyist, and who, years earlier, had helped write the DMCA as a Congressional staffer.

That case made its way slowly through the appeals process, and earlier today, the DC Circuit appeals court overturned the ruling, highlighting a bunch of Prenda's bad behavior, but (perhaps more importantly) pointing out that the subpoenas for information on these 1,000+ Does was clearly inappropriate, first because almost none of the Does appeared to live in Washington DC, and thus were outside the court's jurisdiction. Prenda/AF Holdings complete failure to do anything even remotely close to figuring out if people might be located in DC was pretty damning here:

Federal Rules of Civil Procedure 45 and
26 set forth the relevant considerations. Rule 45(d)(3)(A)
requires a district court to “quash or modify a subpoena that
. . . subjects a person to undue burden.” If a subpoena compels
disclosure of information that is not properly discoverable,
then the burden it imposes, however slight, is necessarily
undue: why require a party to produce information the
requesting party has no right to obtain?

And, here, the court certainly finds the discovery attempts to be "undue," because AF Holdings/Prenda could show no good faith belief that they were going after information relevant to a lawsuit in that court.

Here, we think it quite obvious that AF Holdings could
not possibly have had a good faith belief that it could
successfully sue the overwhelming majority of the 1,058 John
Doe defendants in this district. AF Holdings concedes that
under the District of Columbia’s long-arm statute, which
along with the Due Process Clause governs this question... the only conceivable way that
personal jurisdiction might properly be exercised over these
Doe defendants is if they are residents of the District of
Columbia or at least downloaded the copyrighted work in the
District.... But AF Holdings
has made absolutely no effort to limit its suit or its discovery
efforts to those defendants who might live or have
downloaded Popular Demand in the District of Columbia.
Instead, it sought to subpoena Internet service providers that
provide no service at all in the District. As Duffy reluctantly
conceded at oral argument, AF Holdings could have no
legitimate reason for objecting to the court’s quashing the
subpoenas directed at these providers.... Even for those providers that do serve the District of
Columbia, AF Holdings’s discovery demands were overbroad
because it made no attempt to limit its inquiry to those
subscribers who might actually be located in the District. It
could have easily done so using what are known as
geolocation services, which enable anyone to estimate the
location of Internet users based on their IP addresses. Such
services cost very little or are even free.

The court notes that Prenda's failure to do even the most basic things to limit discovery raises questions about its motives:

Given AF Holdings’s
failure to take even these minimal steps, we cannot escape the
conclusion that it sought the vast majority of this information
for reasons unrelated to its pursuit of this particular lawsuit.... . Indeed, Duffy essentially admitted as much at
oral argument, stating that if, as appears to be the case, 399 of
Comcast’s 400 identified subscribers were found to live
outside the District, “the 399 likely wouldn’t be named as
defendants in this case.”

The court then checks in on the big question of "joinder" -- and whether or not it's appropriate to lump together over 1,000 totally unrelated individuals in one of these copyright trolling lawsuits. Like most courts to date, but unlike Judge Howell, the appeals court sees how problematic this is.

We are unconvinced. For purposes of this case, we may
assume that two individuals who participate in the same
swarm at the same time are part of the same series of
transactions within the meaning of Rule 20(a)(2). In that
circumstance, the individuals might well be actively sharing a
file with one another, uploading and downloading pieces of
the copyrighted work from the other members of the swarm.

But AF Holdings has provided no reason to think that the
Doe defendants it named in this lawsuit were ever
participating in the same swarm at the same time. Instead, it
has simply set forth snapshots of a precise moment in which
each of these 1,058 Does allegedly shared the copyrighted
work—snapshots that span a period of nearly five months.
Two individuals who downloaded the same file five months
apart are exceedingly unlikely to have had any interaction
with one another whatsoever. Their only relationship is that
they used the same protocol to access the same work. To
paraphrase an analogy offered by amicus counsel at oral
argument, two BitTorrent users who download the same file
months apart are like two individuals who play at the same
blackjack table at different times. They may have won the
same amount of money, employed the same strategy, and
perhaps even played with the same dealer, but they have still
engaged in entirely separate transactions.... We therefore agree with
those district courts that have concluded that the mere fact
that two defendants accessed the same file through BitTorrent
provides an insufficient basis for joinder.

It's nice to see that the court picked up on many of the amicus arguments made by EFF, ACLU, Public Knowledge and Public Citizen.

Oh, and, in case you're wondering about all the other stuff, such as the Alan Cooper forgery, the court notes those allegations, while saying they are unrelated to the issues here, but, at the very end, in sending the case back to the district court, tosses this in:

Accordingly, we vacate the district court’s order and
remand for further proceedings consistent with this opinion.
We leave it to the district court to determine what sanctions, if
any, are warranted for AF Holdings’s use of a possible
forgery in support of its claim.

from the well,-if-you've-already-fucked-up-copyright-law-in-one-way... dept

It would appear that actress Cindy Lee Garcia and her lawyer Chris Armenta are figuring that since they've already mucked up copyright law with their ridiculous victory in the 9th Circuit that they might as well go on pushing the boundaries of copyright law to further ridiculous extremes. If you don't recall, the 9th Circuit, via Judge Alex Kozinski found the actress had a magical "copyright interest" in the 5 seconds of Innocence of Muslims 13-minute trailer that she appeared in, allowing her to demand that Google takedown every copy of the video. Multiple copyright experts were flabbergasted at this ruling, and a variety of folks have been lining up to support future proceedings in the case (starting with a possible en banc review of whether or not the court should grant a stay on the ruling until even more review can occur).

In the midst of this, Garcia has filed a motion for contempt against YouTube and Google arguing that the company has failed to abide by the takedown order. However, as the details show, Garcia and Armenta are applying some rather questionable interpretations of copyright law yet again -- though they're interpretations helped along by a bunch of additional problems with Kozinski's order (problems that were mostly ignored given the immensity of the ridiculousness of the key parts of the original order). It seems that their main complaint is that Google only blocked the videos for people in the US. That is, if you visit a foreign version of YouTube, you can still see the clips. That may be true, but it's hard to see how that's contempt. US copyright law only applies in the US. The US court can't realistically order Google to remove the video in other countries, since US courts don't have jurisdiction there. Imagine the flip side: if a court in, say, China, ruled that Google had to block a certain video -- and then found Google in contempt for not blocking viewers in the US from accessing that content. Most people would flip out.

But Garcia and her lawyer seem to think that a single copyright ruling in the US is grounds for worldwide censorship. That's fairly incredible. Though, once again, Judge Kozinski is largely to blame here, as his order certainly could be read to suggest (clearly incorrectly) that he has the power to censor the content globally.

Google has failed to comply. As of this morning, at 7:55 a.m EST, a version of Innocence of Muslims that includes Ms. Garcia's performance is still available on Google's Worldwide Platform and also viewable in Egypt, the nation in which the fatwa was issued for Ms. Garcia's execution. All a viewer needs to do to view a copy of the video that contains the infringing material from any computer in the world and within in YouTube's global platforms--and therefore is governed by the takedown order--is to change his or her settings to any country platform, such as "Egypt."

That's not the only problem with the motion. It also seems to completely ignore existing rulings (such as in the Viacom case) that state that in issuing takedowns, you need to point to the specific instance of infringement, rather than just "make all of this disappear." That's quite reasonable, because content itself is not infringing absent context. There may be perfectly valid versions of the content that are fair use -- especially given the news interest in this particular ruling. But Garcia is insisting that Google has to proactively police all copies and block them -- again, thanks in part to Kozinski's overly broad language in his order that implies a duty to police this issue, despite the law not saying that at all.

Furthermore, the DMCA's 512(j) itself says that injunctions granted under it can only apply to "a particular online site," rather than some sort of global ban across every site in every locale. Kozinski, once again, seems to have gone beyond what the law allows in his weird quixotic quest to twist copyright law into something it is not.

For Google, it is a pedestrian, technical exercise to take down those URLs, to hire an intern to just search for "Innocence of Muslims," and their suggestion that Ms. Garcia should comb through YouTube again, and provide Google with the information again, belies Google's claim that it is in compliance.

While Kozinski seems to ignore this, the DMCA has never had a forward-looking duty to monitor and block all instances of a particular piece of content. It appears that Garcia and her lawyer are trying to simply make up new law here. As we noted just recently, there are some efforts underway to change the DMCA from a "notice and takedown" provision to "notice and staydown" but that's simply not the law today, no matter what Kozinski thinks it is.

The motion goes even further, insisting that the only way to comply with a takedown notice is to completely remove the file from the server, rather than just disable it from being viewable:

Additionally, as of the writing of this brief, Google has not "taken down" anything. Instead, it has merely disabled the various uploads displaying Innocence of Muslims in forms that contain infringing content, leaving the content up and viewable via thumbnails.

Of course, the actual law says that upon notification a company only needs to "remove, or disable access to, the material." Once again, it seems that this is another problem with Kozinski's overly broad order, which declared that Google had to "takedown" the content, rather than just disable it, even as the law has said disabling it should be sufficient.

Furthermore, the motion seems to suggest that Google has a further duty (not even discussed in Kozinski's order) to somehow block Google's search engine from ever pointing to the video anywhere else in the world.

Google has failed to remove full copies of the video from its platforms, has failed to prevent new uploads of the video to YouTube, and continues to publish on its Google search index platforms links to numerous sites and platforms where the video can either be directly viewed or where it can be easily downloaded and saved to viewers' computers.

So now they want to censor Google search results to other sites as well? Yikes.

Indeed, Google has not even made a pro forma attempt to comply with the order, choosing instead to temporarily disable only a few copies of the video that contain infringing content and putting in their place a snide message to the public that states:

"This video is no longer available due to a copyright claim by an actress over her 5-second appearance in the video. A U.S. court has ordered Google to remove the video. We strongly disagree with this copyright ruling and will fight it."

As is clear from Google's near-total disregard of the order and its ridiculing of the Court's authority, Google is thumbing its nose at the Court and making a mockery of our judicial system in an apparent attempt to encourage the public to blame and harass Ms. Garcia and to continue to use infringing content to generate YouTube revenues from traffic directed through the 852 URLs that have illegally posted the content.

Of course, all of Google's responses so far do not seem like "contempt" or "thumbing its nose," but rather following through with the exactly what the law says is proper. Disabling access to the known videos in the US. This is the same way that Google responds to legal takedowns in other countries as well -- disabling it for those countries only. And, yes, Kozinski's order could be read to demand further actions, including fulling taking down all such videos, even those outside the US, but those are just additional problems with Kozinski's order, which go way beyond what the law says. Everyone has reasonably focused on the ridiculousness of the original claim of giving Garcia a copyright interest in the film, and to a lesser extent the First Amendment-defying gag order he placed on Google. But, the details of this contempt motion highlight that Kozinski got a lot of the little things completely wrong as well, such as ordering Google to go way beyond what copyright law requires.

This is a bad case on so many levels, but it could be even more ridiculous if these kinds of precedents by Kozinski's blatant misreading of the law are allowed to stand. The dangerous precedents go beyond just allowing an actor in a film to claim a copyright on the film, but further allowing bogus "worldwide" injunctions and a requirement to completely "take down" content, rather than just disable access to it (which creates a whole host of other problems). Once again, it seems abundantly clear that Kozinski simply went off the reservation with his ruling, ignoring what the law actually says to satisfy his own desire to censor this video.

from the good-luck-with-that-argument dept

John Steele and Paul Hansmeier (who various courts have made clear, make up the core of "Team Prenda") are engaged in so many different lawsuits in which they're getting hit with so many different orders to pay up for their questionable behavior that it may be difficult to keep up. However, in Northern California last month, Judge Edward Chen ruled that Steele and Hansmeier are liable for sanctions and attorneys' fees awarded against "AF Holdings," the semi-mysterious shell company set up in Nevis, which many people (including courts) have recognized was almost certainly set up by Steele and Hansmeier themselves as some sort of way to (a) hide the fact that they were representing themselves and (b) to hide where the money goes. Of course, as court after court has seen through this charade, things aren't looking good for Steele and Hansmeier who should be fearing the eventual law enforcement response to all of this, which is almost certainly approaching.

However, they just can't resist fighting the fight, because that's what they do. When backed into a complete corner, Steele and Hansmeier tend to go into attack mode, trying any and every argument they can possibly think of, no matter how insane. But, and here's the key, they make those arguments with extreme confidence, as if only a moron would think they were wrong. The reality, of course, is that almost all of their claims are laughable. Take for example, the latest one in response to Judge Chen's ruling. Steele and Hansmeier have filed very, very similar filings that (among a few other arguments) try to argue that they cannot be found to be considered the "alter ego" of AF Holdings because Nevis law says that can only be done with the permission of the people being claimed to be the alter ego.

Under Nevis law, accordingly, a person may become an alter ego of a limited liability company only with his or her express consent.

Yes, AF Holdings was registered in Nevis, but if Steele and Hansmeier automatically think that means they can avoid liability in California, their legal skills are even worse than previously expected. Remember AF Holdings was the one who sued first... in California. The issue here is who is responsible for the absolutely bogus lawsuit. And the Court has very good reason, and significant evidence to support, that it's John Steele and Paul Hansmeier. Pretending that registering the company in Nevis somehow gives them a get-out-of-jail-free card is laughable.

Meanwhile, across the country, in the one case where Prenda actually seemed to be having some success, in front of former RIAA lobbyist Beryl Howell, John Steele has withdrawn as counsel and substituted Prenda buddy Paul Duffy. That, alone, isn't particular noteworthy -- these three guys seem to pass around cases like a group of high school kids under the bleachers passing around a joint. However, what is noteworthy is that in filing this, Steele notes that the "Plaintiff consents to Attorney Steele's withdrawal in this matter, as noted by his signature below." Who's the plaintiff? Why, it's the very same AF Holdings. And whose "signature" is it? Why, it's "Mark Lutz." And the date of the signature is... November 5th.

That's interesting. Because back at the end of September, Mark Lutz continued his magic disappearing act by not appearing in a Minnesota court, despite being ordered to be there. Hansmeier was given until the next day to explain the disappearance, and filed a substance-free brief that basically said, "I'm sure Lutz has a good reason, which he'll tell you about when he can." Specifically, Hansmeier told the court:

Based on my prior experience with Mr. Lutz, including Mr. Lutz's in-person attendance before this Court on August 5, 2012, I believe that Mr. Lutz will be able to provide a good-faith reason for failing to make his flight to Minnesota.

While there has been plenty of activity in the docket for this case (including Hansmeier's weak attempt to get magistrate judge Franklin Noel kicked off the case), there has been nothing from Lutz since Hansmeier's promise on October 1st that Lutz would explain what happened. In fact, he hasn't appeared anywhere.

But... suddenly his signature appears on November 5th in a different circuit? Hmm. It would appear he's fairly tardy in getting in his explanation. Of course, there's been some chatter on Twitter wondering if this is really Lutz's signature. We have examples of his actual signature on previous filings, so you can compare. Here's the latest one, supposedly from November 5th:

My gut reaction is that those were not written by the same person, but I'm not a handwriting expert, so we'll give Lutz the benefit of the doubt. I found another Lutz signature that looks more like the first, but it's not notarized -- and I've got a lot more confidence in the notarized version.

Of course, here's the issue. If we give Steele and Lutz the benefit of the doubt here that the signature is legitimate -- and I'm willing to do exactly that -- it would appear that they've got a different problem to deal with: the fact that Lutz never explained his absence in Minnesota. I'm trying to think if there's any other option. Either Lutz has flat out ignored a court order in Minnesota, or someone forged his name in DC. If anyone can come up with any other option, I'm all ears. I guess there's the possibility, also, that both things are true -- that he both ignored a court order and had his signature forged -- but that doesn't make the situation any better...